No. 97-489 IN THE SUPREME COURT OF THE STATE OF MONTANA 1997
BILL GORDON POWELL,**r~~'~** 

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v. Ii \ !. 1 1:\'**~** i**~** THE SALVATION ARMY,**~:-~_ ,~**  t",/.**,:~** ,'.**',~** -**'~-** '-

...::-'" ;1'"**~ ,-..~"** **'j~j',;,l** t> '.,·V I' Defendant and Respondent.

APPEAL FROM: District Court ofthe Fourth Judicial District, In and for the County ofMissoula, The Honorable Ed McLean, Judge presiding.
COUNSEL OF RECORD:

Filed: ForAppellant: James T. Ranney, Attorney at Law, Missoula, Montana ForRespondent: Ronald A. Bender and Matthew J. Cuffe; Worden, Thane & Haines; Missoula, Montana Kevin E. Coventon; Manning, Marder & Wolfe; Los Angeles, California
Submitted onBriefs: December4, 1997 Decided: December 30, 1997Justice Jim Regnier delivered the opinion ofthe Court. InMarch 1997, Bill Gordon Powell filed an action in the District Court for the Fourth Judicial District in Missoula County against the Salvation Army. Powell brought suit pursuantto §49-2-303, MCA, and the Americans with Disabilities Act, 42 U.S.c. §§ 12010 to 12213 alleging the Salvation Army unlawfully discriminated against him by terminating his employment on the basis ofPowell's past history ofalcoholism. The Salvation Army subsequently filed a motion to dismiss, which the District Court granted on July 1, 1997. It is from the court's order dismissing his complaint that Powell presently appeals. For the
reasons statedbelow, we reverse. The sole issue on appeal is whetherthe District Court erred in granting the Salvation Army's motion to dismiss for failure to state a claim due to lack ofjurisdiction based on Powell's failure to file a timely charge with the Montana Human Rights Commission. FACTUAL AND PROCEDURAL BACKGROUND For the purposes ofthis appeal, we look to Powell's complaint and take as true the following allegations offact. In the spring of 1983, Powell began working as a truck driver for a Salvation Army thrift store located in Missoula, Montana. On February 18, 1994, the Salvation Army dismissed Powell from his employment for the statedreason thathe hadbeen "drinking on thejob"that day. Itwas notuntil laterthat year, however, that Powell asserts he first learned

2the Salvation Army had instead, Powell alleges, discharged him due to his past history of alcoholism. Powell initiated a grievance pursuant to Salvation Army procedures. On October 25, 1994, following an internal grievance hearing, the Salvation Army upheld Powell's termination. Powell subsequently filed a charge with the Montana Human Rights Commission (MHRC). A right to sue letter was issued in late December 1996, and on March 20, 1997, Powell filed this action pursuant to the Americans with Disabilities Act, alleging the Salvation ArnlY unlawfully discriminated against him by terminating his employment on the basis ofhis past history ofalcoholism. On April 24, 1997, the Salvation Army filed a motion to dismiss for failure to state
a claim, alleging lack of jurisdiction based on Powell's failure to timely file his discrimination claim with the MHRC. On July 1, 1997, the District Court concluded it lackedjurisdiction, and accordingly granted the Salvation Army's motion to dismiss for failure to state a claim for which reliefcouldbe granted. Powell appeals. DISCUSSION Did the District Court err in granting the Salvation Army's motion to dismiss for failure to state a claim due to lack of jurisdictionbased on Powell's failure to file a timely charge with the Montana Human Rights Commission?

31. Standard ofreview We first note thatthe Salvation Army filed its motion to dismiss "forthe reason that plaintiffs complaint fails to state a claim against the defendant upon which reliefcan be granted for lack of jurisdiction and failure to timely file a charge withthe MHRC." Nowhere in its motion or supporting briefdoes the Salvation Army specify by number the defense it asserts pursuant to Rule 12(b), M.R.Civ.P. For the sake ofclarity on appeal, we conclude the Salvation Army's motion is, in substance, amotion to dismiss for failure to state a claim upon which reliefcanbe granted, properlybroughtpursuant to Rule 12(b)(6), M.R.Civ.P. We review de novo a district court's ruling on a motion to dismiss under Rule 12(b)(6),M.R.Civ.P. Gerberv. Commissionerof Insurance of State of Montana (1990), 242 Mont. 369, 370, 786 P.2d 1199, 1200. This Court reviews an appeal from a district court's order granting a motion to dismiss based on the sufficiency ofthe complaint. Busch
v. Kammerer (1982), 200 Mont. 130, 132, 649 P.2d 1339, 1340 (citing Conley v. Gibson (1957), 355 U.S. 41, 45,78 S. Ct. 99, 101-02,2 L. Ed. 2d 80, 84). In Willson v. Taylor (1981),194 Mont. 123,634P.2d 1180, we recognized that [a] complaint should not be dismissed for failure to state a claim unless it appears beyond doubtthat the plaintiffcanprove no set offacts in support of his claim whichwould entitle him to relief. A motion to dismiss under Rule 12(b)(6), M.R.Civ.P., has the effect ofadmitting all well-pleaded allegations in the complaint. In considering the motion, the complaintis construedin the light most favorable to the plaintiff, and all allegations of fact contained therein are taken as true. Willson, 194 Mont. at 126,634P.2d at 1182 (citations omitted).

4

### Thus, "[i]nreviewing amotion to dismiss, we construethe complaint

### in the lightmost favorable to the plaintiffand take the allegations ofthe complaint as true." HKMAssociates


### v. Northwest Pipe Fittings, Inc. 

### (1995),272 Mont. 187, 191, 900 P.2d 302, 304 (citing Goodman Realty, Inc. 

### v. Monson 

### (1994), 267 Mont. 228, 231,883 P.2d 121,123). Pursuant to this standard ofreview, this Court will affirm the court's dismissal only ifwe "determine that plaintiffis not entitled to reliefunder any set offacts which could be proven 

### in supportofthe claim." Grove 

### v. MontanaArmyNational Guard 

### (1994),264 Mont. 498,501,872P.2d 791,793 (citing King 

### v. State 

### (1993), 259 Mont. 393,396,856 P.2d 954, 955). The District Court's determination that Powell's complaint failed to state a claim is a conclusion oflaw. See Boreen 

### v. Christensen 

### (1994), 267 Mont. 405, 408, 884 P.2d 761, 762. This Court's standard ofreview ofa district court's conclusion oflaw is whether the court's interpretation ofthe law is correct. Boreen, 

### 267 Mont. at408, 884 P.2d at 762 (citing Steer, Inc. 

### v. Department of Revenue 

### (1990), 245 Mont. 470, 474-75, 803 P.2d 601,603). At thisjuncture, it is worth recognizing that the Salvation Army attached a number ofexhibits to its brief

### in support ifits motion to dismiss. Powell similarly attached several exhibits, most ofthem letters, to his response brief. Where, as here, "matters outside the pleading are presentedto and not excludedby the court" on a motion to dismiss for failure to state a claim for relief, Rule 12(b), M.R.Civ.P., requires that the court treat the motion "as
one for summaryjudgment and disposed ofas provided 

### in Rule 56." Furthermore, the

5district court shall give each party a "reasonable opportunity to present all material made pertinent to suchmotionby Rule 56." Rule 12(b), M.R.Civ.P. Although the parties clearly presented matters outside the pleadings to the District Court, whether the District Court in fact relied on those outside matters in granting the Salvation Army's motion to dismiss is less clear. The District Court did not, as it should have, either expressly exclude that material from its consideration, or, in the alternative, notify the parties ofits intent to treat the motion to dismiss as one for summaryjudgment pursuantto Rule 56, M.R.Civ.P. See, e.g., Wood v. DenHerder (1996),277 Mont. 147, 152, 920 P.2d 105, 108. In any event, we conclude that resolution ofthe present appeal does not require us to lookbeyondthe pleadings in this case. Accordingly, we undertake the ensuing discussion withoutrelying upon the various exhibits in this case, andreach our conclusion based strictly upon ourreview ofthe pleadings. 2. Sufficiency ofthe complaint As noted above, the Salvation Army moved to dismiss Powell's complaint for failure to state a claim for relief, arguing the District Court lackedjurisdiction to entertain Powell's suit due to his failure to timely file a complaintwiththe MHRC. Indeed, we have previously recognized that the timely filing of a complaint with the MHRC is a jurisdictional prerequisite to filing a suit for discrimination in district court. Hash v. 

# u.s. West Communication Servo (1994),268 Mont. 326, 886 P.2d 442.

6With respectto the timely filing ofcomplaints, §49-2-501(4)(b), MCA, requires that
a claimant who initiates internal grievance procedures file a discrimination claim with the MHRC within 300 days after the alleged unlawful discriminatory practice occurred orwas discovered. Section49-2-501(4)(b), MCA, specifically provides as follows: Ifthe complainant has initiated efforts to resolve the dispute underlying the complaintby filing a grievance in accordance with any grievance procedure established by a collective bargaining agreement, contract, orwritten rule or policy, the complaintmaybe filed within 180 days after the conclusion ofthe grievance procedure ifthe grievance procedure concludes within 120 days after the allegedunlawful discriminatorypractice occurred orwas discovered. Ifthe grievance procedure does not conclude within 120 days, the complaint must be filed within 300 days after the alleged unlawful discriminatory practice occurred orwas discovered. Thus, pursuant to § 49-2-501(4)(b), MCA, Powell had 300 days from the date the allegedunlawful discriminatory practice occurred orwas discovered within which to file a complaint with the MHRC. In its motion to dismiss, the Salvation Army argues the alleged unlawful discriminatory practice in this case was Powell's termination for smelling ofalcohol and having slurred speech, which both occurred and was thus discovered by Powell on February 18, 1994. The Salvation Army maintains that Powell did not file his complaint with the MHRC until December 19, 1994, 304 days after the date ofhis discharge. The Salvation Army thus argues that Powell failed to timely file his complaint with the MHRC pursuantto §49-2-501(4)(b), MCA. The Salvation Armypoints to ourdecision in

### Hash, and

7argues that, because Powell failed to timely file his complaint with the MHRC, the District Court lackedjurisdictionto entertain Powell's suit. The District Court agreed, and on July 1,1997, issued an order granting the Salvation Army's motion to dismiss on that basis. In so doing, the court specifically noted it was undisputedby the parties that Powell was fired for "smelling ofalcohol andhaving slurred speech," and concluded that this allegedly discriminatory act both occurred and was discovered on February 18, 1994. The court thus concludedthat Powell had failed to file his complaintwiththe MHRC within 300 days ofhis firing, and thatthe court lackedjurisdiction
overthe action. Accordingly, the court ordered Powell's complaint dismissed for failure to state a claim for relief. On appeal, Powell argues the court erred in concluding his cause ofaction accrued on the February 18, 1994, date ofhis termination. Instead, Powell argues his cause ofaction did not accrue until some months later when he first discovered the Salvation Army had terminated him, not for drinking on thejob on February 18, 1994, but due to his pasthistory ofalcoholism. In his complaint, Powell specifically alleges the following: Although Plaintiffbelieved initiallythathe was being discharged for "drinking on thejob," after an internal grievance hearing, a final decision was rendered discharging him permanently which, along with other communications attributable to the Defendant, have made it clearthat Plaintiffwas being fired for his pasthistory ofalcoholism
....

8Powell argues the allegedunlawful discriminatory practice was not, as the Salvation Army contends and the District Court concluded, the Salvation Army's decision to fire him for "drinking on thejob," or for "smelling ofalcohol and having slurred speech," but rather its subsequentreliance upon Powell's "past history ofalcoholism" tojustify his temlination. Powell alleges he did not discoverthe Salvation Army's true reason for discharging him until sometime afterhis February 18, 1994, termination, and that his cause ofaction thus did not
accrue on February 18, 1994. Unless otherwiseprovidedby statute, the periodoflimitation applicable to any given
cause of action begins to run "when the claim or cause of action accrues." Section 27-2-102(2), MCA. Section 49-2-501(4)(a), MCA, specifically provides that a cause of action accrues under the Human Rights Act when "the alleged unlawful discriminatory practice occurred or was discovered." Section 49-2-501(4)(a), MCA; see also Hash, 268 Mont. at 329, 886 P.2d at 444. The plaintiffin Hash was informed by her employer on June 19, 1991, that her "job would be eliminated." Hash, 268 Mont. at 328,886 P.2d at 443. In response, the plaintiff sought anotherjobwith the same employer, but was unable to secure a position. Hash,268 Mont. at 328, 886 P.2d at 443. Her employer eliminated herposition on January 31, 1992, andthe plaintiffeventually filed a complaintwith the MHRC some four months later. Hash, 268 Mont. at 329, 886 P.2d at 443. The employer moved for summaryjudgment on the

9grounds that the plaintiffhad failed to timely file her complaint with the MHRC pursuant to § 49-2-501(4), MCA. We affirmed the district court's decision grantingthe employer's motion for summary judgment, and concluded her cause ofaction accrued on the day her employernotified her ofits decision to eliminate her position. Hash, 268 Mont. at 329-30, 886 P.2d at 444. We held the plaintiffhad failed to "support herposition that her cause ofaction did not accrue"
on the day heremployer "advisedherthat herposition would be eliminated," and therefore, concludedthe plaintiffhad failed to comply with the requirements of§ 49-2-501(4), MCA, andtimely file her complaint with the MHRC. Hash, 268 Mont. at 329-30, 886 P.2d at 444. As in Hash, the plaintiffin the present case alleges his cause ofaction did not accrue
on the day his employer notified him ofhis tennination. More specifically, Powell argues that although the Salvation Army terminated his employment on February 18, 1994, he did not learn it did so in reliance upon his "past history ofalcoholism" until sometime later. Thus, Powell contends, itwas notuntil sometime afterFebruary 18, 1994, that he discovered the alleged unlawful discriminatory practice and that his claim accordingly accrued. Although the case ofHash is, in many ways, similarto the one at bar, it differs from the present appeal in one particularly fundamental respect. The appeal in Hash was from a district court order granting a motion for summaryjudgment, whereas the present appeal is from an order granting a motion to dismiss for failure to state a claim upon which reliefcan be granted. InHash, we affirmedthe district court's decision granting the employer's motion

10for summaryjudgment, concludingin partthatthe plaintiff"didnot supportherposition that hercause ofaction did not accrue" on the date she learned herposition wouldbe terminated. Because the present case involves an appeal from an order granting a motion to dismiss, we can reach no such conclusion here. We cannot look to the entire record to determine whether Powell has supported the allegations containedinhis complaint. Rather,
we are restricted to a review of the pleadings and a determination with respect to the sufficiency ofPowell's complaint. Assuming then, as we must for the purposes ofthis appeal, that the Salvation Army initially indicated to Powell that he was being fired for "drinking on thejob" on February 18, 1994, and only later revealed he had actually been fired forhispasthistoryofalcoholism, Powell maywellbe able to demonstratethathis cause of action did not accrue until sometime after his February 18, 1994, telmination and, therefore, thathe complied with the applicable 300-day limitation period. Thus, construing Powell's complaint in his favor, we conclude the allegations contained therein are sufficient to withstand the Salvation Army's motion to dismiss, and hold the District Court erred in concluding otherwise. Based on the foregoing, we hold the District Court erredin dismissing Powell's complaint for failure to state a claim upon which reliefcan be granted. We reverse the District Court's order granting the Salvation Army's motion to dismiss, andremand for further proceedings consistentwith this opinion.

11We Concur:

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